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LJS v The Queen

LJS v The Queen

Case [2015] NSWCCA 47 31 March 2015

Criminal Liability

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: LJS v R [2015] NSWCCA 47
Hearing dates: 4 November 2014
Date of orders: 31 March 2015
Decision date: 31 March 2015
Before: Meagher JA [1]
Hidden J [2]
RS Hulme AJ [3]
Decision:
1.   Grant leave to appeal against the sentences imposed by Conlon DCJ on 23 February 2012.

2.   Grant leave to appeal against the sentences imposed by Conlon DCJ on 22 November 2012.

3.   Dismiss the appeal against the sentences imposed by Conlon DCJ on 23 February 2012.

4.   Dismiss the appeal against the sentences imposed for counts 3, 5, 6 and 7 by Conlon DCJ on 22 November 2012.

5.   Allow the appeal against the sentences imposed for counts 1, 2, 4, and 8 by Conlon DCJ on 22 November 2012 and quash those sentences.

6.   In respect of count 8 dealt with by Conlon DCJ on 22 November 2012, sentence the Applicant to a non-parole period of 2 years to date from 13 April 2019 together with an additional term of 18 months commencing on 13 April 2021.

7.   In respect of count 4 dealt with by Conlon DCJ on 22 November 2012, sentence the Applicant to a non-parole period of 4 years to date from 13 April 2022 together with an additional term of 2 years commencing on 13 April 2026.

8.   In respect of count 1 dealt with by Conlon DCJ on 22 November 2012, sentence the Applicant to a non-parole period of 2 years to date from 13 April 2024 together with an additional term of 12 months commencing on 13 April 2026.

9.   In respect of count 2 dealt with by Conlon DCJ on 22 November 2012 sentence the Applicant to a non-parole period of 2 years commencing on 13 April 2024 together with an additional term of 6 years commencing on 13 April 2026.

10.   Record as the date upon which it appears to the Court that the Applicant shall be eligible for parole, 13 April 2026.

Catchwords: Criminal law sentencing – totality – sentencing practice at time of offending
Cases Cited: AJB v R [2007] NSWCCA 51 at [39]
Gore v R [2010] NSWCCA 330
Magnuson v R [2013] NSWCCA 50
Pearce v The Queen [1998] HCA 57; 194 CLR 610
Power v The Queen (1974) 131 CLR 623
PWB v R [2011] NSWCCA 84
R v Clinch (1994) 72 A Crim R 301 at 306
R v MAK (2006) 167 A Crim R 15; [2006] NSWCCA 381
R v MJN [2002] NSWCCA 129, (2002) NSWLR 368
Rosenstrauss v R [2012] NSWCCA 25
RWB v R [2008] NSWCCA 93; 184 A Crim R 453 at [36]
Category: Principal judgment
Parties: LJS (Appellant)
Regina (Respondent)
Representation:
Counsel:
T Gartelmann(Appellant)
G Rowling (Respondent)
Solicitors:
Legal Aid Commission of NSW (Appellant)
S Kavanagh – Solicitor for Public Prosecutions (Respondent)

File Number(s): 2010/267441; 2011/400259
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading LJS v The Queen

Details

AGLC: LJS v The Queen [2015] NSWCCA 47
Case: [2015] NSWCCA 47
Decision Date: 31 March 2015

CaseChat Overview and Summary

The appellant, LJS, was convicted for a series of criminal offences, and the case was brought before the High Court of Australia. The central issue in this appeal was the appropriate sentence to be imposed on LJS, considering the totality principle and the sentencing practices in place at the time the offences were committed. The appeal focused on the application of the totality principle in the sentencing process, which requires courts to consider the cumulative effect of multiple offences when determining an appropriate sentence. LJS argued that the trial judge had not adequately applied this principle, leading to an excessive sentence.

The court was tasked with determining whether the trial judge had erred in failing to adequately consider the totality principle when sentencing LJS. Additionally, the court needed to assess the impact of sentencing practices at the time of the offending on the appropriate sentence. The appeal hinged on whether the trial judge's approach to sentencing was consistent with established legal principles and whether the sentence imposed was proportionate to the cumulative effect of the offences. The court also needed to consider whether the sentence was influenced by any outdated or inappropriate sentencing practices.

In delivering its judgment, the High Court found that the trial judge had indeed failed to properly apply the totality principle in determining LJS's sentence. The court emphasised the importance of considering the cumulative effect of multiple offences when sentencing an offender. The court also noted that the trial judge had not adequately taken into account the sentencing practices in place at the time the offences were committed, which had an impact on the sentence imposed. Consequently, the High Court concluded that the sentence was excessive and ordered a re-sentencing hearing to ensure that the totality principle was correctly applied and that the sentence reflected contemporary sentencing practices.

The final orders of the court included the quashing of LJS's original sentence and the direction that a re-sentencing hearing be held. The court mandated that the re-sentencing process must adhere to the totality principle and consider the appropriate sentence in light of contemporary sentencing practices. This decision underscores the importance of correctly applying legal principles in the sentencing process and ensuring that sentences are proportionate to the cumulative effect of multiple offences.

Orders